INTRODUCTION

A gift is a transfer of property where interest is transferred from one living

person to another, without any consideration. It is a gratuitous and inter vivos in
nature. This is the general definition that is accepted by all the religions,
including Muslim law. As per the Muslim Law, a gift is called as Hiba.

Under English laws, right in property is classified by a division on the basis of

immoveable and moveable (real and personal) property. Rights in the land
described as “estate” under English Law do not always imply only absolute
ownership but it also includes rights which fall short of it and are limited to the
life of the grantee or in respect of time and duration of use of the same[i].

Under Hindu Law, a gift is regarded as the renunciation of the property right by
the owner in the favor of donee. According to Jimutvahana, under Hindu law‟s
concept of gift, ownership is not created by acceptance but by renunciation of
the donor. But however, the Mitakshara school of Hindu law considers
acceptance as an important ingredient for a gift. The donor can divest his
interest by renunciation but cannot impose the same on the donee if he is not
ready to accept[ii].

Under Muslim Law, the concept of Gift developed much during the period of
610 AD to 650 AD. In general, Muslim law draws no distinction between real
and personal property, and there is no authoritative work on Muslim law, which
affirms that Muslim law recognizes the splitting up of ownership of land into
estates. What Muslim law does recognize and insist upon, is the distinction
between the corpus of the property itself (called as Ayn) and the usufruct in the
property (as Manafi).

Over the corpus of property, the law recognizes only absolute dominion,
heritable and unrestricted in point of time. Limited interests in respect of
property are not identical with the incidents of estates under the English law.
Under the Mohammedan law, they are only usufructuary interest (and not rights
of ownership of any kind). Thus, in English law a person having interest in the
immoveable property for limited periods of time is said to be the “owner” of the
property during those periods and the usufruct is also regarded as a part of the
corpus.

On the other hand, in Muslim law, a person can be said to be an “owner” only if
he has full and absolute ownership. If the use or enjoyment of property is
granted to a person for life or another limited period such person cannot be said
to be an “owner” during that period. The English law thus recognizes ownership
of the land limited in duration while Muslim law admits only ownership
unlimited in duration but recognizes interests of limited duration in the use of
the property. This basically differentiates Muslim Law‟s concept of property
and gift from that of English Law[iii].

Under Muslim Law, the religion of the person to whom a gift is made is not
relevant. In India, there is a separate statute that governs the matters related to
the transfer of property. The Transfer of Property Act, 1882 under Chapter VII
talks about gifts and the procedure for making the same. Yet as per section 129
of the Act, the Transfer of Property Act, 1882 does not apply to the Muslims
making the gift.[iv]
CONCEPT OF HIBA UNDER MUSLIM LAW

The conception of the term „gift‟ as used in the Transfer of Property Act, 1882
is somewhat different from the practice under the Muslim Law. Under the
Muslim Law, a gift is a transfer of property or right by one person to another in
accordance with the provisions provided under Muslim law. Hiba (Tamlik al
ain), is an immediate and unconditional transfer of the ownership of some
property or of some right, without any consideration or with some return
(ewaz); and the term „hiba‟ and „gift‟ are often indiscriminately used but the
term hiba is only one of the kinds of transactions which are covered by the
general term „gift‟. The other types of gifts include Ariya (Tamlik al manafe),
where the only usufruct is transferred and Sadqah where the gift is made by the
Muslim with the object of acquiring religious merit[v].

A man may lawfully make a gift of his property to another during his lifetime,
or he may give it away to someone after his death by will. The first is called a
disposition inter vivos; the second, a testamentary disposition. Muhammadan
law permits both kinds of transfers; but while a disposition inter vivos is
unfettered as to quantum, a testamentary disposition is limited to one-third of
the net estate. Muhammadan law allows a man to give away the whole of his
property during his lifetime, but only one-third of it can be bequeathed by will.

The Hanafi lawyers define hiba as „an act of bounty by which a right of
property is conferred in something specific without an exchange‟. The Shias
hold that „a hiba is an obligation by which property in a specific object is
transferred immediately and unconditionally without any exchange and free
from any pious or religious purpose on the part of the donor’. Muslim law
allows a Muslim to give away his entire property by a gift inter vivos, even with
the specific object of disinheriting his heirs[vi].
ESSENTIALS OF HIBA

Since Muslim law views the law of Gift as a part of the law of contract, there
must be an offer (izab), an acceptance (qabul), and transfer (qabza).

In Smt Hussenabi v Husensab Hasan[vii], a grandfather made an offer of a gift

to his grandchildren. He also accepted the offer on behalf of minor
grandchildren. However, no express of implied acceptance was made by a
major grandson. Karnataka HC held that since the three elements of the gift
were not present in the case of the major grandchild, the gift was not valid. It
was valid in regards to the minor grandchildren.

Thus, the following are the essentials of a valid gift[viii]-

1. A declaration by the donor:

There must be a clear and unambiguous intention of the donor to make a

gift. A declaration is a statement which signifies the intention of the
transferor that he intends to make a gift. A declaration can be oral or
written. The donor may declare the gift of any kind of property either
orally or by written means. Under Muslim law, writing and registrations
are not necessary.

In the famous case of Ilahi Samsuddin v. Jaitunbi Maqbul[ix] it was

held that under Muslim Law, declaration, as well as acceptance of the
gift, may be oral whatever may be nature of property gifted. When the
gift is made in writing, it is known as Hibanama[x]. This gift deed need
not be on stamp paper and also need not be attested or registered.[xi] In
the famous case of Md. Hesabuddin v Md. Hesaruddin[xii], where the
gift was made by a Muslim Woman and was not written on a stamp
paper, Gauhati High Court held that the gift was valid.

The declaration made by the donor should be clear. A declaration of Gift

in ambiguous words is void. In Maimuna Bibi v. Rasool Mian[xiii], it
was held that while the oral gift is permissible under Muslim law, to
constitute a valid gift it is necessary that donor should divest himself
completely of all ownership and dominion over the subject of the gift. His
intention should be in express and clear words. According to
Macnaghten, “A gift cannot be implied. It must be express and
unequivocal, and the intention of the donor must be demonstrated by his
entire relinquishment of the thing given, and the gift is null and void when
he continues to exercise any act of ownership over it.”[xiv]
 The declaration should be free from all the impediments such as
inducement, threat, coercion, duress or promise and should be made with
a bona fide intention.
2. Acceptance by the donee[xv]

A gift is void if the donee has not given his acceptance. The legal
guardian may accept on behalf of a minor. Donee can be a person from
any religious background. Hiba in favor of a minor or a female is also
valid. A child in the mother‟s womb is a competent done provided it is
born alive within 6 months from the date of declaration. A juristic person
is also capable of being a donee and a gift can be made in their favor too.
On behalf of a minor or an insane person, any guardian as mentioned
under the provisions of Muslim law can accept that gift. These authorized
people include[xvi]:

 Father,
 Father‟s Executor,
 Paternal Grand-Father, and
 Paternal Grand Father‟s Executor.

3. Delivery of possession by the donor and taking of the possession

by the done[xvii]:

In Muslim law, the term possession means only such possession as the
nature of the subject is capable of. Thus, the real test of the delivery of
possession is to see who – whether the donor or the donee – reap the
benefits of the property. If the donor is reaping the benefit then the
delivery is not done and the gift is invalid.

The mode of delivery of possession depends completely upon the nature

of the property. Delivery of possession may either be: Actual, or
Constructive.

1. Actual Delivery of Possession: Where the property is physically handed

over to the donee, the delivery of possession is actual. Generally, only
tangible properties can be delivered to the done. Tangible property may
be movable or immovable. Under Muslim law, where the mutation
proceedings have started but the physical possession cannot be given and
the donor dies, the gift fails for the want of delivery of possession[xviii].
However, in such cases, if it is proved that although the mutation was not
complete and the done has already taken the possession of the property,
the gift was held to be valid[xix].
 2. Constructive Delivery of Possession: Constructive delivery of
possession is sufficient to constitute a valid gift in the following two
situations:

 Where the Property is intangible, i.e. it cannot be perceived through

senses.
 Where the property is tangible, but its actual or physical delivery is not
possible.

Under Muslim law, Registration is neither necessary nor sufficient to validate

the gifts of immovable property. A hiba of movable or immovable property is
valid whether it is oral or in writing; whether it is attested or registered or not,
provided that the delivery of possession has taken place according to the rules
of Muslim Law[xx].
Constitutional Validity of Hiba

The question of whether the first exemption was constitutionally valid in

regards to the right to equality (article 14 of the Indian Constitution) was rather
rapidly solved by the Courts, validating the disposition on the grounds of
„reasonable classification.

It is enough to say that it is now well settled by a series of decisions of this

Court that while Article 14 forbids class legislation, it does not forbid
reasonable classification for the purposes of legislation, and in order to pass the
test of permissible classification, two conditions must be fulfilled, namely[xxi]:

(1) That the classification must be founded on an intelligible differentia which

distinguishes persons or things that are grouped together from others left out of
the group; and,

(2) That differentia must have a rational relation to the object sought to be
achieved by the statute in question.

The classification may be founded on different bases such as geographical, or

according to objects or occupations and the like. The decisions of this Court
further establish that there is a presumption in favor of the constitutionality of
an enactment and the burden is upon him who attacks it to show that there has
been a clear transgression of the constitutional guarantee; that it must be
presumed that the legislature understands and correctly appreciates the needs of
its own people and that its laws are directed to problems made manifest by
experience and that its discriminations are based on adequate grounds; and
further that the legislature is free to recognize degrees of harm and may confine
its restrictions to those cases where the need is deemed to be the clearest.
It is well known that there are fundamental differences between the religion and
customs of the Mahomedans and those of others, and, therefore the rules of
Mahomedan law regarding gift are based on reasonable classification and the
provision of Section 129 of the Transfer of Property Act exempting
Mahomedans from certain provisions of that Act is not hit by Article 14 of the
Constitution.

The most essential element of Hiba is the declaration, “I have given”. As per
Hedaya, Hiba is defined technically as[xxii]:

“Unconditional transfer of existing property made immediately and without any

exchange or consideration, by one person to another and accepted by or on
behalf of the latter“.

According to Fyzee[xxiii], Hiba is the immediate and unqualified transfer of the

corpus of the property without any return.
SUBJECT MATTER OF GIFT UNDER MUSLIM LAW

Now the question which we have in mind is what can be a subject matter of
Hiba, under Muslim law. As per the provisions of Transfer of Property Act,
1882, the subject matter of the gift must be certain existing movable or
immovable property. It may be land, goods, or actionable claims. It must be
transferable under Section 6. But it cannot be future property. A gift of a right
of management is valid, but a gift of future revenue of a village is invalid.

These cases were decided under Hindu and Mohammedan law respectively but
they illustrate the principle. In a Calcutta case, it was said that the release of a
debt is not a gift, as a gift must be of tangible property. It is submitted that the
release of a debt is not a gift as it does not involve a transfer of property but is
merely a renunciation of a right of action.

It is quite clear that an actionable claim such as a policy of insurance may be the
subject of a gift It is submitted that in a deed of gift the meaning of the word
„money‟ should not be restricted by any hard and fast rule but should be
interpreted having regard to the context properly construed in the light of all the
relevant facts. Therefore in order to constitute a valid gift, there must be an
existing property. In Mohammedan law, any property or right which has some
legal value may be the subject of a gift[xxiv].

Under Muslim law, following constitute the subject matter of Hiba[xxv]:

1. It must be anything (moveable or immovable, corporeal or incorporeal)

over which the right of property may be exercised or anything which
 exists either as a specific entity or an enforceable right, or anything
designable under the term mal (property).
2. It must be in existence at the time when the gift is made. Thus, the gift of
anything that is to be made in the future is void. For example, a donor
makes a gift the fruits of his mango garden that may be produced this
year. This gift is invalid since the mangoes were not in existence at the
time of making the gift.
3. The donor must possess the gift.
4. A gift of a part of a thing which is capable of the division is not valid
unless the said part is divided off and separated from the property of the
donor, but a gift of an indivisible thing is valid. For example, A, who
owns a house, makes a gift to B of the house and of the right to use a
staircase used by him jointly with the owner of an adjoining house. The
gift of A‟s undivided share in the use of the staircase is not capable of
division; therefore it is valid.
5. According to Hanafi law, the gift of an undivided share in any property
capable of the division is, with certain exceptions, incomplete and
irregular (fasid), although it can be rendered valid by subsequent
separation and delivery of possession. For instance, A makes a gift of her
undivided share in certain lands to B, and the share is not divided off at
the time of the gift but is subsequently separated and possession thereof is
delivered to B, the gift although irregular (fasid) in its inception, is
deemed valid by subsequent delivery of possession.Exceptions: Gift of
such undivided share is valid which is incapable of division:a) Hiba by
one co-heir to the other; For instance, A Muslim woman died leaving a
mother, a son, and a daughter. The mother made a gift of her unrealized
one-sixth share jointly to the deceased‟s son and daughter. The gift was
upheld by Privy Council.

b) Hiba of a share in freehold property in a large commercial town;

For instance, A wins a house in Dhaka. He makes a gift of one-third of
his house to B. The property being situated in a large commercial town,
the gift is valid.

c) Hiba of a share in a zamindari or taluka; According to Ameer Ali,

the doctrine of Musha is applicable only to small plots of land, and not to
specific shares in large landed properties, like zamindaris. Thus, if A and
B are co-sharers in a zamindari, each having a well –defined share in the
rents of undivided land, and A makes a gift of his share to B, there is no
regular partition of the zamindari, the gift is valid.

d) Hiba of a share in a land company

 Muslim law recognizes the difference between the corpus and the
usufructs of a property. Corpus, or Ayn, means the absolute right of
ownership of the property which is heritable and is unlimited in point of
time, while, usufructs, or Manafi, means the right to use and enjoy the
property. It is limited and is not heritable. The gift of the corpus of a thing
is called Hiba and the gift of only the usufructs of a property is called
Ariya.

In Nawazish Ali Khan vs Ali Raza Khan[xxvi], it was held that gift of
usufructs is valid in Muslim law and that the gift of corpus is subject to
any such limitations imposed due to usufructs being gifted to someone
else. It further held that gift of a life interest is valid and it doesn‟t
automatically enlarge into the gift of corpus. This ruling is applicable to
both Shia and Sunni.

Hence critical scrutiny of the concept of Gift under Muslim law gives us
the following instances regarding what can be the subject matter of Hiba:

 anything over which right of property may be exercised.

 anything which may be reduced to possession.
 anything which exists either as a specific entity or as an enforceable right.
 anything which comes within the meaning of the word mal.In Rahim Bux
vs Mohd. Hasen[xxvii], it was held that gift of services is not valid
because it does not exist at the time of making the gift.

Kinds of Gifts

There are several variations of Hiba. These include[xxviii]:

 Hiba bil Iwaz

 Hiba ba Shart ul Iwaz
 Sadkah
 Ariyat

HIBA- IL-IWAZ

„Hiba‟ means „gift‟ and „Iwaz‟ means „consideration‟. Hiba Bil Iwaz means a
gift for consideration already received. It is thus a transaction made up of two
mutual or reciprocal gifts between two persons. One gift from a donor to the
donee and one from donee to the donor.

The gift and return gift are independent transactions. Therefore, when both i.e.,
hiba (gift) and iwaz (return or consideration) is completed, the transaction is
called hiba-bil-iwaz. For example, A makes a gift of a cow to S and later B
makes a gift of a house to A. If B says that the house was given to him by A by
way of return of exchange, then both are irrevocable[xxix].

So a Hiba Bil Iwaz is a gift for consideration and in reality, it is a sale. Thus,
registration of the gift is necessary and the delivery of possession is not
essential and the prohibition against Mushaa does not exist. The following are
requisites of Hiba bil Iwaz:

1. Actual payment of consideration on the part of the donee is

necessary. In Khajoorunissa vs Raushan Begam[xxx], it was held that
adequacy of the consideration is not the question. As long as the
consideration is bona fide, it is valid no matter even if it is insufficient.
2. A bona fide intention on the part of the donor to divest himself of the
property is essential.

Gift in lieu of dower debt –

In Gulam Abbas vs Razia[xxxi], the Hon‟ble High Court at Allahabad held that
an oral transfer of immovable property worth more than 100/- cannot be validly
made by a Muslim husband to his wife by way of gift in lieu of dower debt
which is also more than 100/-. It is neither Hiba nor Hiba bil Iwaz. It is a sale
and must be done through a registered instrument.
HIBA-BA-SHARTUL-IWAZ

„Shart‟ means „stipulation‟ and „Hiba ba Shart ul Iwaz‟ means a „gift made with
a stipulation for return‟. Unlike in Hiba bil Iwaz, the payment of consideration
is postponed. Since the payment of consideration is not immediate the delivery
of possession is essential. The transaction becomes final immediately upon
delivery. When the consideration is paid, it assumes the character of a sale and
is subject to preemption (Shufa). As in sale, either party can return the subject
of the sale in case of a defect.

It has the following requisites –

 Delivery of possession is necessary.

 It is revocable until the Iwaz is paid.
 It becomes irrevocable after the payment of Iwaz.
 Transaction when completed by payment of Iwaz, assumes the character
of a sale.

In general, Hiba bil Iwaz and Hiba ba Shart ul Iwaz are similar in the sense that
they are both gifts for a return and the gifts must be made in compliance with all
the rules relating to simple gifts.
REVOCATION OF GIFT

Although there is a tradition which indicates that the Prophet was against the
revocation of gifts, it is a well-established rule of Muslim law that all voluntary
transactions, including gifts, are revocable. The Muslim law-givers have
approached the subject of revocability of gift from several angles.

From one aspect, they hold that all gifts except those which are made by one
spouse to another, or to a person related to the donor within the degrees of
prohibited relationship, are revocable.

The Hedaya gives the reasons thus[xxxii]:

“The object of a gift to a stranger is a return for it is custom to send presents to

a person of high rank that he may protect the donor; to a person of inferior rank
that the donor may obtain his services; and to person of equal rank that the
donor may obtain an equivalent and such being the case it follows that the
donor has the power of annulment, so long as the object of the deed is not
answered, since a gift is capable of annulment”.

The texts of Muslim law lay down a long list of gifts which are irrevocable. The
contents of the list differ from school to school, and the Shias and the Sunnis
have the usual differences. The Muslim law-givers also classify gifts from the
point of view of revocability under the following two heads[xxxiii]:

 Revocation of gifts before the delivery of possession, and

 Revocation of gifts after the delivery of possession.

Revocation of gifts before the delivery of possession[xxxiv]:

Under Muslim law, all gifts are revocable before the delivery of possession is
given to the donee. Thus, P makes a gift of his motor-car to Q by a gift deed. No
delivery of possession has been made to Q. P revokes the gift.

The revocation is valid. In this case, it will not make any difference that the gift
is made to a spouse, or to a person related to the donor within the degrees of
prohibited relationship. The fact of the matter is that under Muslim law no gift
is complete till the delivery of possession is made, and therefore, in all those
cases where possession has not been transferred the gift is incomplete, and
whether or not it is revoked, it will not be valid till the delivery of possession is
made to the donee.

The revocation of such a gift, therefore, merely means that the donor has
changed his mind and does not want to complete it by the delivery of
possession. For the revocation of such gifts, no order of the court is necessary.
Fyzee rightly says that this is a case of inchoate gift and it is not proper to apply
the term revocation to such a gift.

Revocation after the delivery of possession[xxxv]:

Mere declaration of revocation by the donor, or institution of a suit, or any other

action, is not sufficient to revoke a gift. Till a decree of the court is passed
revoking the gift, the donee is entitled to use the property in any manner; he can
also alienate it.

It seems that:

 all gifts after the delivery of possession can be revoked with the consent
of the donee,
 revocation can be made only by a decree of the court.

The revocation of a gift is a personal right of the donor, and, therefore, a gift
cannot be revoked by his heirs after his death. A gift can also not be revoked
after the death of the donee.

According to the Hanafi School with the exception of the following cases, a gift
can be revoked even after the death of the donee.

According to the Hanafi School, with the exception of the following cases, a
gift can be revoked even after the delivery of possession. The exceptions to the
same are[xxxvi]:

 When a gift is made by one spouse to another.

 When the donor and the donee are related within the prohibited degrees.
 When the donee or the donor is dead.
 When the subject-matter of the gift is no longer in the possession of the
donee, i.e., when he had disposed of it by sale, gift or otherwise or, where
he had consumed it, or where it had been lost or destroyed.
 When the value of the subject-matter has increased.
 When the identity of the subject-matter of the gift has been completely
lost, just as wheat, the subject-matter of gift, is converted into flour.
 When the donor has received something in return (iwaz).
 When the object of the gift is to receive the religious or spiritual benefit
or merit, such as sadaqa.

The Shia law of revocation of gifts differs from the Sunni law in the following
respects: First, gift can be revoked by a mere declaration on the part of the
donor without any proceedings in a court of law; secondly, a gift made to a
spouse is revocable; and thirdly, a gift to a relation, whether within the
prohibited degrees or not, is revocable.
Conclusion

The conception of the term gift and subject matter of gift has been an age-old
and traditional issue which has developed into a distinct facet in property law.
Different aspects related to gift in property act and its distinction with the
Mohammedan law and its implications has been the major subject matter of this
article.

In considering the law of gifts, it is to be remembered that the English word

„gift‟ is generic and must not be confused with the technical term of Islamic
law, hiba. The concept of „hiba‟ and the term „gift‟ as used in the transfer of
property act, are different. As we have seen in the project that Under
Mohammedan law, to be a valid gift, three essentials are required to exist:

 Declaration of gift by the donor.

 Acceptance of the gift, express or implied, by or on behalf of the done.
 Delivery of possession of the subject of the gift.

The English law as to rights in property is classified by a division on the basis

of immoveable and moveable (real and personal) property. The essential
elements of a gift are:

 The absence of consideration.

 The donor.
 The done.
 The subject-matter.
 The transfer; and the acceptance.

Thus this striking difference between the two laws relating to gift forms the
base of this project in understanding its underlying implications.

To conclude the researcher can say that, the gift is a contract consisting of a
proposal or offer on the part of the doner to give a thing and acceptance of it by
the donee. So it is a transfer of property immediately and without any exchange.
There must be a clear intention by the donor to transfer the possession to the
doner for a valid gift. It can be revoked by the doner. And the provisions for the
same have also been mentioned.